white_paper_on_data_protection_in_india_171127_final_v2

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specific purposes and under special conditions. 513 Such types of data are termed ―sensitive‖, and may include religious beliefs, physical or mental health, sexual orientation, biometric and genetic data, racial or ethnic origin and health information. 6.2 Issues (i) Definition of ―sensitive data‖ as per the Sensitive Personal Data Rules The SPDI Rules, framed under Section 43A of the IT Act place certain obligations on individuals holding data in electronic form. The SPDI Rules seek to introduce internationally accepted privacy principles, such as collection limitation, purpose specification, use limitation and consent in the handling of ―sensitive personal information‖. 514 However, it may not be possible to rely entirely on this definition from the perspective of possibility of abuse and misuse. 515 Information relating to caste and religious beliefs of an individual would also need to be examined, as they are especially relevant to the Indian context. There are other issues relating to the scope of the SPDI Rules as they only applied to ―body corporates‖ and not to other private and government entities, which may process sensitive personal data. (ii) Need to further examine the rationale behind certain categories of personal data As discussed, certain types of information have been identified as sensitive because there is a greater likelihood of harm caused to the individual if there is unauthorised collection, use and disclosure of this information. In order to understand the rationale behind identifying certain categories of information as sensitive, there may be a need to assess the harms, which are likely to arise. In understanding harms, two categories are evident: intrinsic harms- for instance, the harms caused by the disclosure of health information may be intrinsic, as a user may not want her health information to be widely shared. Other harms are instrumental- e.g. Sharing medical records could lead to discrimination, utilisation of this information by pharmaceutical companies to send unwanted marketing information to these individuals etc. On the other hand, payment instrument details are sensitive not necessarily because any intrinsic harm is caused by disclosure of say, a credit card number, but rather because damage 513 Article 29 Data Protection Working Party, ‗Advice <strong>paper</strong> on special categories of data (―sensitive data‖)‘, European Commission (4 April 2011), available at: http://ec.europa.eu/justice/data-protection/article- 29/documentation/otherdocument/files/2011/2011_04_20_letter_artwp_mme_le_bail_directive_9546ec_annex1_en.pdf, (last accessed 29 October 2017). 514 Rule 3, SPDI Rules defines ‗sensitive personal data or information‘ to include: password; financial information such as bank account or credit card or debit card or other payment instrument details; physical, physiological and mental health condition; sexual orientation; medical records and history; biometric information; any detail relating to the above provided to the organisation for providing service; and any of the information received under the above by the organisation for processing, stored or processed under lawful contract or otherwise. 515 Bhairav Acharya, ‗Comments on the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011‘, The Center for Internet & Society (CIS) (31 March 2013), available at: https://cis-india.org/internet-governance/blog/comments-on-the-it-reasonable-securitypractices-and-procedures-and-sensitive-personal-data-or-information-rules-2011, (last accessed 29 October 2017). 112
may instrumentally be caused if the data is not adequately secured is significant. Understanding which categories of data be considered sensitive is a critical task. (iii) Difficulty in determining the context of use which could make data sensitive Although it may be possible to identify certain types of information, the processing of which is more likely to cause harm to an individual; very often this is dependent not only on the nature of the individual, but also on the context in which it is used. For instance, there may be certain types of information, which are not classified under the law, but it could become sensitive because of its potential impact on individuals if this data is compromised in any manner. This could include unique identification numbers, passport numbers, and computer passwords. The sensitivity of the data could also develop based on its combination with other types of information. For example, an email address taken in isolation, is not sensitive. However, if it is combined with a password, then it could become sensitive as it opens access to many other websites and systems, which may expose the individual to harms such as cyber-attacks and phishing frauds. 516 It is also possible that personal or even non-personal data, when processed using big data analytics could be transformed into sensitive personal data. Therefore, there may be a need to create safeguards which will prevent misuse of personal information in these contexts of use. 6.3 International Practices European Union The EU GDPR 517 provides separate rules for processing of ―special categories of data‖, which are listed as personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data, or data relating to the health, sex life and sexual orientation of an individual. The EU GDPR provides that in general, processing of such information is prohibited, except with the explicit consent of the data subject and where processing is permitted in certain specified situations as identified within the law. 518 United Kingdom Under UK DPA, ―sensitive personal data‖ includes those types of information identified in the EU GDPR. It also includes information relating to the commission of an offence and proceedings relating to an offence. 519 The ICO guidelines recognise that information relating 516 Lokke Moerel, ‗GDPR Conundrums: Processing Special Categories of Data‘, IAPP (12 September 2016), available at: https://iapp.org/news/a/gdpr-conundrums-processing-special-categories-of-data/#, (last accessed 30 October 2017). 517 Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. 518 Articles 9 (1) and 9(2)(a)-(j), EU GDPR. 519 Section 2, UK DPA. 113
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WHITE PAPER OF THE COMMITTEE OF EXP
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inclination to peruse the contents
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TABLE OF CONTENTS Foreword.........
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(x) Impact on development of teleco
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9.1 Introduction ..................
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1. A Digital India in a Digital Wor
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information can then be used to cre
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Privacy is a complex concept that h
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The FIPPS were soon followed by the
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In light of these developments, the
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OECD Guidelines, 68 and sought to a
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Constitution - the right against un
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visits at night and regular surveil
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or necessary for legal compliance.
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Aadhaar based authentication which
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tested as per the contemporary Indi
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man and woman must be kept in mind.
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of the law. Second, the ease of cro
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ambit of the term organisation. 191
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1. What are your views on what the
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2.2 Horizontality of Application (P
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a. The law could regulate personal
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This distinction between data and i
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(iv) Pseudonymisation and Anonymisa
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that the information is not in the
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CHAPTER 4: SENSITIVE PERSONAL DATA
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protection. Subject to an evaluatio
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South Africa The POPI Act defines p
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a. All personal data processed must
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an employee of the controller who g
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. Clear bifurcation of roles and as
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7.2 Specific Exemptions and Interna
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In India, collection of statistical
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of imposition of similar nature.‘
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mechanism to provide prior approval
Page 71 and 72: 1. What are your views on including
Page 73 and 74: To facilitate the cross-border tran
Page 75 and 76: (ii) Binding Corporate Rules BCR ar
Page 77 and 78: individual to take action to enforc
Page 79 and 80: CHAPTER 9 : DATA LOCALISATION 9.1 I
Page 81 and 82: (iii) IT-BPO/BPM Industrial Growth
Page 83 and 84: amounts of computer hardware, they
Page 85 and 86: In Indonesia, the regulation regard
Page 87 and 88: Distribution of Insurance Products)
Page 89 and 90: Another advantage of relying on con
Page 91 and 92: individuals may find it impossible
Page 93 and 94: that the collection is reasonably n
Page 95 and 96: CHAPTER 2: CHILD’S CONSENT 2.1 In
Page 97 and 98: the cloud service provider as to st
Page 99 and 100: The PIPEDA does not specifically de
Page 101 and 102: 7. How can the requirement for pare
Page 103 and 104: mechanism still continues to play a
Page 105 and 106: 3.3 International Practices Despite
Page 107 and 108: (CALOPPA) 466 and the GLB Act requi
Page 109 and 110: CHAPTER 4: OTHER GROUNDS OF PROCESS
Page 111 and 112: This ground covers two types of sce
Page 113 and 114: that there may be certain situation
Page 115 and 116: CHAPTER 5: PURPOSE SPECIFICATION AN
Page 117 and 118: collected for more than one purpose
Page 119 and 120: enable data controllers to understa
Page 121: CHAPTER 6: PROCESSING OF SENSITIVE
Page 125 and 126: PIPEDA does not specifically deal w
Page 127 and 128: CHAPTER 7: STORAGE LIMITATION AND D
Page 129 and 130: solely for archiving purposes in th
Page 131 and 132: 2. Data Quality: The principle of d
Page 133 and 134: data protection laws across jurisdi
Page 135 and 136: The requirement to be provided the
Page 137 and 138: Information Act, 1982 or other appr
Page 139 and 140: CHAPTER 9: INDIVIDUAL PARTICIPATION
Page 141 and 142: . the processing is unlawful and th
Page 143 and 144: such a right may be unsuitable in t
Page 145 and 146: from being taken solely on the basi
Page 147 and 148: CHAPTER 10: INDIVIDUAL PARTICIPATIO
Page 149 and 150: emove data for ―the processing of
Page 151 and 152: South Africa Section 24 of the POPI
Page 153 and 154: PART IV REGULATION AND ENFORCEMENT
Page 155 and 156: they form core, substantive element
Page 157 and 158: CHAPTER 2: ACCOUNTABILITY AND ENFOR
Page 159 and 160: have been taken or that the data su
Page 161 and 162: The EU GDPR focuses on a ―risk ba
Page 163 and 164: person who processes personal infor
Page 165 and 166: with developing certain baseline ac
Page 167 and 168: ENFORCEMENT TOOLS 2.6 Introduction
Page 169 and 170: Australia The Privacy Act makes ext
Page 171 and 172: B. PERSONAL DATA BREACH NOTIFICATIO
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eputation, and loss of confidential
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There is a need to put in place a n
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C. CATEGORISATION OF DATA CONTROLLE
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The Treasury Board of Canada Secret
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Under the EU GDPR, only certain dat
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5. What range of additional obligat
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D. DATA PROTECTION AUTHORITY 2.18 I
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and approval of the appointment by
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The supervisory authority shall pro
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. Advisory The functions of the OAI
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standards be set by different entit
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maintain reasonable security practi
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notices‘ 827 and ‗information n
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5. Given that the Appellate Tribuna
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CHAPTER 4: REMEDIES A. PENALTIES In
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sector, size, financial and other r
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to an overly adverse impact on smal
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B. COMPENSATION Awarding of compens
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United Kingdom As per the guidance
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C. OFFENCES There are certain types
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4.11 Provisional Views 1. The law m
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SCOPE AND EXEMPTIONS 1. Territorial
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6. Are there any other views relati
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2. Should the definition of process
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1. What are your views on including
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9. Data Localisation Data localisat
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2. Child’s Consent It is estimate
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Alternatives: a. Assigning a ‗dat
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If ‗sensitive personal data‘ is
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2. Should there be a restriction on
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3. Does a right to be forgotten add
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1. What are your views on the use o
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oth for principled and practical re
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Questions 1. What are your views on
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12. In cases where compensation cla
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3. What are the mitigating circumst
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